United States District Court, N.D. California
For Brian Cornell, Plaintiff: Karen Helene Kahn, Peter Wayne Alfert, Esq., LEAD ATTORNEYS, Hinton Alfert & Kahn LLP, Walnut Creek, CA; Mark Thurston Baller, LEAD ATTORNEY, Hinton Alfert Kahn, LLP, Walnut Creek, CA; Scott H.Z. Sumner, SUMNERLAW, Walnut Creek, CA.
For Columbus McKinnon Corporation, Defendant: Annette Franchelly Mijanovic, LEAD ATTORNEY, Haight Brown and Bonesteel LLP, LA, CA; Krsto Mijanovic, LEAD ATTORNEY, Haight Brown & Bonesteel LLP, Los Angeles, CA; Stephen Christian Stouder, LEAD ATTORNEY, Haight Brown & Bonesteel, LLP, Los Angeles, CA; Cristina Anastassia Guido, Haight Brown & Bonesteel LLP, Los Angeles, CA.
For Autoquip Corpoation doing business as American Lifts, Defendant: Leah Brooke Mason, LEAD ATTORNEY, Haight Brown and Bonesteel LLP, Los Angeles, CA; Annette Franchelly Mijanovic, Haight Brown and Bonesteel LLP, LA, CA; Cristina Anastassia Guido, Krsto Mijanovic, Haight Brown & Bonesteel LLP, Los Angeles, CA.
For YALE INDUSTRIAL PRODUCTS, INC., Defendant: Krsto Mijanovic, LEAD ATTORNEY, Haight Brown & Bonesteel LLP, Los Angeles, CA; Annette Franchelly Mijanovic, LEAD ATTORNEY, Haight Brown and Bonesteel LLP, LA, CA; Cristina Anastassia Guido, Haight Brown & Bonesteel LLP, Los Angeles, CA.
For Federal Express Corporation, D/B/A FedEx, Interested Party: John Campbell, LEAD ATTORNEY, Federal Express Corp., Memphis, TN; Brian Douglas Amonn, Valencia Wilberding & Tompkins, Oakland, CA.
ORDER RE: DISCOVERY LETTER Re: Dkt. No. 55
SUSAN ILLSTON, United States District Judge.
On February 11, 2013, plaintiff filed a complaint against Columbus McKinnon Corporation, American Lifts, Inc., Autoquip, and Does 1-200, claiming he was injured while performing his usual work duties for Federal Express (" FedEx") at the Oakland Hub at Oakland International Airport. Compl. ¶ 3. Plaintiff alleges that on February 16, 2011, his foot was crushed while he used a scissor lift cargo moving system, and that the injury was caused by defects in the design and/or manufacture of the system. Compl. ¶ 12. On July 18, 2013, this Court denied plaintiff's motion to remand this action to state court. Docket No. 24. On May 29, 2014, plaintiff filed a first amended complaint. Docket No. 40.
Now before the Court is a discovery dispute letter submitted by the parties and FedEx. The parties have served a total of twelve subpoenas on FedEx; FedEx has responded to the first seven of these subpoenas but has taken the position that it need not respond to the remaining requests. Docket No. 55, Discovery Letter 3-4. FedEx, a non-party to this action, opposes certain discovery sought by the parties, and further requests that it receive compensation from the parties for any further discovery-related expenses. Id. at 4.
I. Rule 45
Rule 45(d)(2)(B)(ii) requires that when a court orders compliance with a subpoena over an objection, " the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance." Fed.R.Civ.P. 45(d)(2)(B)(ii). The Rule leaves little room for discretion on the question of when cost shifting must be applied. " [W]hen discovery is ordered against a non-party, the only question before the court in considering whether to shift costs is whether the subpoena imposes significant expense on the non-party. If so, the district court must order the party seeking discovery to bear at least enough of the cost of compliance to render the remainder 'non-significant.'" Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013), citing Linder v. Calero-Portocarrero, 251 F.3d 178, 182, 346 U.S.App.D.C. 117 (D.C. Cir. 2001).
However, while " [t]he shifting of significant expenses is mandatory, . . . the analysis is not mechanical; neither the Federal Rules nor the Ninth Circuit has defined 'significant expenses, ' which is a term that readily lends itself to myriad interpretations depending on the circumstances of a particular case." United States v. McGraw-Hill Companies, Inc., No. CV 13-0779-DOC JCGX, 2014 WL 3810328, at *3 (C.D. Cal. Aug. 1, 2014). " What constitutes a 'significant' cost is at the discretion of the district court." Callwave Commc'ns, LLC v. Wavemarket, Inc., No. C 14-80112 JSW (LB), 2014 WL 2918218, at *3 (N.D. Cal. June 26, 2014). In making this determination, a court may " take into account the financial ability of the non-party to bear some costs" for purposes of establishing whether expenses are " significant." Linder 251 F.3d at 182; see also McGraw-Hill No. CV 13-0779-DOC JCGX, 2014 WL 3810328, at *4 (" This ...